Restoring the Fourth Amendment: How We the People Can Win Over Washington

Despite promises of change, the Obama administration has proven itself either unwilling—or unable—to shift the paradigm driving increasingly invasive surveillance, or increasingly pervasive profiling according to race, religion, and national origin. Nearly halfway through the Obama administration's term, the battle to banish the Bush administration's policy legacy remains largely unfought, let alone won.

But this is no time for progressive and libertarian constitutionalists to throw in the political towel. While "change you can believe in" may have been a premature promise from our president, we at the grassroots enjoy ample opportunities to shift the landscape in DC.

Whether concerned by government spying, or the guilt by association apparent in profiling Latinos, African Americans, and Muslims, Arabs, and South Asians for various so-called "signature crimes," limits on local law enforcement authorities offer the potential to galvanize solidarity among communities of color. Measures restricting domestic intelligence operations can also attract the support of libertarians—including some elements of the Tea Party—disaffected by the Washington consensus favoring expanding executive power.

About Miranda Rights/Richard Reid/Newt Gingrich/Abdulmutallab

There has recently been a flap over Newt Gingrich's Daily Show interview (and subsequent comments, along with others by various Republicans) related to the Obama administration's handling of Umar Farouk Abdulmutallab, the man who attempted to blow his underwear up on a flight to Detroit. The GOP criticism is basically that the Obama administration read Miranda rights to Abdulmutallab and generally treated him like he was an American citizen. They argue that this is completely unacceptable behavior...he's a foreign terrorist, and shouldn't get the benefits of our legal system. Stewart raised the issue of Richard Reid, the shoe bomber, with Gingrich - Reid was also read his Miranda rights and largely treated within the rules of the U.S legal system. Gingrich's response was that Reid was a U.S. citizen - other Republicans have been making this point as well. Of course, this is not true at all - Reid was a British national. The left has been arguing that this is proof of hypocrisy - Abdulmutallab basically was treated like Reid, but the GOP didn't go after President Bush. This is, of course, entirely true, but I think we're missing the bigger point. We got good intelligence from Abdulmutallab. Why isn't this the central point of discussion?

Yeah, look, today's Republican party is a hypocritical one, and I think it is important to point this out (note: I think the same standard applies to the Democrats, too - I'm an equal hypocrisy hater). But why is this the central point of discussion? The Abdulmutallab case is really a testament to the effectiveness of normal legal practices. Gingrich talked about how the Obama administration's treatment of Abdulmutallab was wrong because he's not a U.S. citizen and because it makes America less safe. Well, that last point is kind of the crux of the argument, and the one we really should focus on. Apparently, the US got a lot of useful intel from Abdulmutallab, Mirandized and all. Is there reason to believe treating him more harshly, say, waterboarding, would have gotten us more info? We've already discussed this on the Spoon here, and here, and, at the very least, we don't see that being likely. We're not exactly going out a limb with that view. A hell of a lot of experts agree that harsh interrogation techniques don't get you good information. So, the flap over treating Abdulmutallab "lightly" seems to be problematic in that, by making such an argument, the GOP leaves itself open to being rightly accused of pushing harder interrogation to appear tougher, while actually making us LESS SAFE. You know, because harsher interrogation might actually get us less intelligence. Now, if only that point could be discussed more often, so as to finally kill this dangerous tough-guy debate. And by the way, the "tough-guy" lawmakers who want harsher interrogation look like kids that got beat up for lunch money growing up. So, you know, just throw a punch at them every now and then. Like calling them out for their discourse on this that makes America less safe.

Double Standards: How Our Lawlessness Strengthens Our Enemies

We have failed to even investigate torturers, yet we have prosecuted and imprisoned millions for lesser offenses. And we allow mass murderers the benefit of constitutional rights that we deny detainees at Guantanamo Bay and elsewhere. Until policymakers examine and fix these double standards, they will continue to undermine our foreign policy, as well as our domestic criminal justice system.

We now know that the Bush administration's torture policies proved horrendously counterproductive, in more ways than one: they eroded our allies' trust, undermined the ability of our non-state supporters to credibly defend our goodwill, generated bad intelligence in the form of forced—and predictably false—confessions, and undermined the morale of the professional interrogators who resisted their illegal (and idiotic) orders.

Worse yet, torture drove recruits into the arms of our enemies. According to veteran interrogators from multiple armed services, as well as the FBI, the number one reason militants flocked to Iraq was U.S. torture of detainees at Guantanamo Bay, Abu Ghraib, Bagram Air Force Base, CIA black sites, and the various foreign countries to which we continue to outsource torture through the extraordinary rendition program.

It was galling enough when, last year, all three branches of the federal government colluded to sweep evidence of torture under the rug. Confronted by thousands of abusive acts depicted in photos—some as severe as outright rape—DC united to protect its own. Acting at the behest of the CIA's discredited leadership, the administration lobbied Congress to amend a federal statute to grant the Defense Department an extraordinary authority to hide specific evidence of its own criminal trail, and the Supreme Court signed off on the deal.

Now, the double standard has come full circle...twice.

The first has plagued the Obama administration throughout its first year in office, and undermined the legitimacy of both its foreign policy, as well as our criminal justice system. On the one hand, people whose criminality stands hidden in plain sight—the former officials who unapologetically authorized torture, like Cheney, Addington, Bybee, and Yoo—remain free of even investigation, let alone prosecution. On the other hand, people of color face relentless prosecution and vicious penalties for non-violent offenses like drug possession, gambling, or even moving violations.

The second double standard is more recent, equally troubling, and potentially more problematic going forward. On the one hand, charges facing mercenaries apparently guilty of senselessly murdering nearly 20 Iraqis (in a bloody incident that touched off one of the most violent episodes of our six-year occupation) were dismissed by a federal district court on Thursday because the prosecution relied on statements given under promises of immunity, and thereby violated the Fifth Amendment right against self-incrimination.

On the other hand, the kangaroo courts at Guantanamo Bay we call "military commissions" don't even pretend to honor such rights, or others that are far more fundamental. Mercenaries who commit mass murder with profound international consequences were afforded robust constitutional protections barring the use of statements made under promises of immunity. Meanwhile, detainees held by the U.S.—who have included humanitarian workers and tourists swept up with "the worst of the worse" in the race to find scapegoats—held no right to exclude statements coerced by outright torture until last fall. Nor have they (for the most part) enjoyed the opportunity to assert any rights in impartial courts.

Rather than federal courts defending the rights of the accused against potentially arbitrary imprisonment, detainees plead their cases before biased military commissions seeking pre-ordained outcomes. Rather than exclude "compelled statements" like those of the exonerated Blackwater contractors, the military commissions operating in Guantanamo Bay (and those proposed by some policy analysts as a model for an even broader scheme to operate within the U.S. after the facility in Cuba has closed) invite unreliable evidence routinely rejected by federal courts.

The U.S. military commander in Iraq attempted to explain Thursday's decision with the lame and inaccurate assertion that it offered "a lesson in the rule of law." What the dismissal of the Blackwater contractors' charges actually demonstrates is quite the opposite: law requires consistency, whereas our approach to accountability for war crimes smacks of opportunism.

The imperatives to defend our nation's historical legacy, or the universal moral principles condemning torture, or the international legal system and its bedrock prohibition on torture, have apparently proven too quiet for the deaf ear of Washington institutions. No one seems to care that although torture is an international crime, officials complicit in it remain highly rewarded and occupy prestigious positions in government and the private sector.

But these double standards carry a price, well beyond the reputation and moral standing our nation has already lost.

We wage, in the war on terror, a battle for hearts and minds. And there is no surer way to lose that battle than to violate the rights of detainees, while vindicating those of mercenaries--or to prosecute politically powerless people for innocuous behavior, while praising officials who violate our species' most fundamental shared commitments. Such blatant inconsistency is lost neither on our enemies, nor the billions of individuals targeted by their recruitment efforts.

Officials increasingly wring their heads over a supposed threat of domestic radicalization. It is ephemeral in the first instance, but the concern points to a generally legitimate fear: people of any kind who grow alienated could eventually turn violent.

Some Muslims in America may indeed be growing increasingly alienated—which may seem understandable in the face of policies like "special registration" round-ups, guilt by association, pervasive surveillance, the infiltration of religious institutions and entrapment by ex-convicts paid handsomely by taxpayers, intrusive interrogations and searches, private sector employment and housing discrimination, hate crimes, bullying, and racial and religious profiling by law enforcement authorities. But as a group, we have not renounced the social compact by taking up arms, to any greater extent than former servicemembers could be said to have been categorically radicalized by virtue of some supporting right-wing militia groups like the Aryan Nation.

But while Muslim Americans remain loyal to the U.S., people in other countries have no compact with us to renounce. And they have no reason to accept our military presence except the principles we purport to uphold...at the same time that we overtly violate them without apology.

The strategy that could most effectively hamstring violent extremism abroad is the same one that would most effectively stop disaffected youth in America from turning to violence: applying our principles equally and with consistency. Honestly investigating our nation's record, and prosecuting those individuals responsible for international crimes, would go a long way to reassure observers that we take justice seriously. And allowing the rights and laws in which we have long taken pride to also govern the trials of those we militarily detain would relieve concerns about U.S. human rights abuses, both among international critics and domestic observers targeted by militant propagandists.

At the moment, we continue to fail on each front. Despite the President's pretty words in Cairo last fall, we Americans committed to rule of law and the Constitution remain waiting for that "change [we] can believe in." And it's not just us: the world—and the people over whose hearts and minds we struggle—are watching, too.

This article was originally published by Huffington Post.

The Failure of the Federalist, No. 10

Despite our Founders' vision of independent powers exercising checks and balances to prevent a "tyranny of the majority," every branch of the federal government acted last month to cast its lot with torturers. But even though President Obama, Congress and the Court have united to hide evidence of high-level crime, Americans of conscience continue to resist, arguing that sweeping human rights abuses under the rug is a greater threat to national security than dealing with them openly and bringing the perpetrators to justice.

This Monday, the Supreme Court ruled in Department of Defense v. ACLU that the Defense Department could maintain secrecy over photos documenting pervasive torture. While disappointing, the decision was more or less inevitable in the wake of the Obama administration's latest reversal.

After deciding to release evidence of torture in wake of court orders requiring disclosure, the administration later caved to pressure from the intelligence community, and even went so far as to force out the official whose decision antagonized the CIA leadership. Lobbying Congress to secure an amendment to FOIA, the administration bent over backward to protect torturers and keep them from facing justice.

Executive secrecy is appalling enough in the abstract, and even worse in the context of a cover up hiding evidence of apparent war crimes and torture. Authorized by an act of a complacent Congress bowing to a disingenuous administration, the Defense Department acted last week to withhold evidence of its own misconduct, based on an illusory justification citing the safety of U.S. troops abroad. And, as it must under Justice Jackson's analysis in the seminal Steel Seizure cases, the Supreme Court acquiesced.

Every branch of the U.S. government—the Executive, the Congress, and now the Supreme Court—has shockingly acted to sweep evidence of war crimes under the rug. Their collusion is a profound betrayal of our nation's historical legacy, a setback for international human rights, and a devastating defeat for democratic transparency in the face of official misconduct.

But in a democracy, even collusion among every branch of our federal government does not end the story. Last week, the Bill of Rights Defense Committee released a forceful coalition letter I wrote on behalf of nearly 30 interfaith, civil rights, and peace and justice organizations around the country to "explain why transparency and robust accountability are a strategic national security imperative, and to expose the self-interest of voices counseling against accountability."

The letter criticized the "self-serving and internally inconsistent diatribe" of the CIA leadership, reiterating that "any incident of torture or kidnapping violated international law," and also that "detainee abuse...undermined several important national security interests."

First, by forcing detainees to make unreliable statements, coercive interrogation proved to be a poor vehicle for intelligence gathering. Second, torture played into the hands of our nation's enemies by facilitating their recruitment efforts. Finally, torture sapped the morale of junior intelligence agents, as well as the experienced interrogators who complained about torture policies. (citations omitted)

Our coalition went on to examine the impact of torture with impunity on several important groups of stakeholders: (a) the men and women of our armed forces and intelligence services, whose morale has been sapped by the protection of criminals among them; (b) our nation's international allies, "many of which have voiced concerns about detainee mistreatment"; (c) civil society voices supportive of U.S. military deployments in areas where our legitimacy is contested; (d) and the "millions of Americans from all walks of life, demographics, professions, backgrounds, and communities who are appropriately appalled by the CIA's abuses."

Beyond noting the interests of these groups, our letter also reframed a number of misconceptions pervading the issue of accountability for torture, which grows only more pressing with the revelation over the weekend of continuing torture under the Obama administration despite the repudiation of enhanced interrogation techniques.

First, responding to "the self-serving ruse that releasing the photos would undermine the safety of U.S. troops deployed abroad," our coalition argues that "any potential harm to our troops inheres in the criminal conduct depicted in the photos, not their potential disclosure." Moreover, "[t]he extent to which that conduct has undermined our broader national security only reinforces the imperative of prosecution."

Second, the letter reframes the procedural posture, noting that "failing to investigate those who conceived, planned, and orchestrated violations of international law does not reflect political neutrality. In fact, the current investigation, limited to some junior agents, reflects pre-judgment in favor of alleged torturers." (emphasis in original)

Ultimately, "the Department of Defense retains--and we request[ed] that [the President] exercise--the authority to declassify and release the photos." As we argued last week, "Our safety as a nation, as well as the legitimacy of our system of justice, the integrity of our intelligence services, and the strength of our international alliances all depend on [President Obama's] willingness to restore the rule of law by ensuring its equal application to all."

This is the latest among many tests - most of which he has, so far, unfortunately failed - that will demonstrate who the President is in fact. Will he serve as the beacon of hope in government that he pretended to be throughout last year's campaign, or like other politicians, did he merely pander to the public in order to pursue his personal ambitions?

This article was originally published by Huffington Post.

Losing Wars We Already Won (Part I): Torture vs. WWII

Over the past century, our nation has triumphed over two sets of aspiring global tyrants: the axis powers in WWII, and the Soviet Union in the Cold War. Our victories over these foes were, in each case, world-historical in scale and importance. Yet within less than a century, we now flirt with losing the principles those successes established.

First, our recent record on torture, and more recent failure to prosecute all officials involved in enabling it, undermines the legacy of international human rights we established after the Second World War. Second, after vindicating freedom, liberty, and individual privacy in the Cold War, we now dutifully submit to a surveillance state more intrusive than any that has ever existed in human history.

In other words, Bush and Cheney succeeded in doing what neither Nazi Germany nor the Soviet Union could: eviscerate American values and undermine our grandest foreign policy accomplishments since the turn of the 20th century. And while President Obama's aim to “look forward, not backward,” may resemble a thoughtful political compromise, it is an illegal capitulation to illegitimate political interests carrying profound consequences for human rights and freedom both in the U.S. and around the world.

WWII and Human Rights...

The allied powers fought the Second World War largely in the name of human rights, which we enshrined in its wake with a series of international institutions. The United Nations was perhaps the most ambitious example; others include various treaties setting baseline standards for (among many other things) the treatment of detainees during wartime.

International institutions to ensure collective security represented a major leap forward for humankind, akin to the Apollo moon landing 20 years later. Not since the Treaty of Westphalia in 1648 had international relations undergone so fundamental a transformation. A core tenet of the post-WWII era, established by the Nuremberg Trials of former Nazi officials, held that individuals bear criminal liability for violating international human rights regardless of what domestic laws my authorize their conduct. The “following orders” defense was soundly rejected and officials up and down the chain of command faced justice for war crimes.

We Americans have been called upon to apply these principles to our own leaders only 60 years later. But our willingness to preserve our earlier achievements has proven lacking.

...vs. Torture with Impunity

Despite public pressure from voices across the political spectrum, the Obama administration continues to sweep torture under the rug. And while the Holder Justice Department has demonstrated welcome independence by recently announcing a limited investigation led by a special prosecutor, it could be worse than none at all if senior officials enjoy effective immunity.

First, investigating only junior level scapegoats would set a legal precedent that decisionmakers can violate human rights with impunity. Second, overlooking senior officials who set torture policies would confer artificial legitimacy on the range of offenses that were officially approved, despite their international illegality. While the current cover-up threatens the rule of law and real accountability is necessary, scapegoating could be even worse than doing nothing.

Failing to follow the key Nuremberg precedents--that “following orders” cannot justify war crimes and that liability transcends the chain of command--weakens them in the future. Mere omission vindicates lawlessness: sitting on our hands or prosecuting only some individuals involved will undermine the international legal framework we erected after defeating the Axis powers.

Immunity for any officials involved in torture will lead to an unfortunately predictable result: a global race to the bottom in human rights standards. Every two-bit despot the world over will claim a license to torture, maim and perhaps even kill at will.

Rather than stand accountable to the international community, any accused torturer need merely cite the Holder precedents (allowing perceived necessity to justify war crimes and resurrecting the lame “following orders” defense) to escape justice for whatever manner of abuse they might concoct. Even today, torture by U.S. officials reportedly continues at Guantanamo Bay, where Immediate Reaction Forces have killed at least one detainee while administering brutal force feedings lacking even sanitation, let alone anesthesia.

Moreover, by eroding a principle so fundamental as the prohibition on torture, underinclusive prosecution renders more palatable the full range of other international law violations. If even torture doesn't justify prosecuting everyone involved, why would, for instance, poaching endangered species or violating the ban on ozone-producing chlorofluorocarbons (CFCs)?

When attempting to justify their desire to sweep torture under the rug, apologists argue from both sides of their mouths. Accepting the “following orders” defense, they suggest that investigators ignore wrongdoing by interrogators who committed torture, yet conversely demand that senior officials who issued those orders should also escape investigation (despite their even greater culpability). Apologists wish to avoid “chilling current intelligence operations,” but given the dismal performance of our intelligence agencies, a little transparency and accountability is long overdue.

Examining other examples of prosecution offers even more reasons to pursue a robust and thorough--rather than artificially limited--investigation. Unless expanded from its initial contours, prosecutor John Durham's investigation will allow the architects of torture policy to remain free, while only other country's torturers face justice (or for that matter, while non-violent offenders in America receive prison sentences for less severe crimes). The resulting contrast and lack of proportionality could erode the legitimacy of both the international legal regime generally, and our own criminal justice system, in one fell swoop. Few discrete decisions--and even fewer omissions--could do so much damage so quickly to such vital institutions.

Our failure to apply the Nuremberg precedents threatens to sacrifice a civilizational advance as major as the printing press. Perhaps we should be less surprised, however, given that U.S. torture policy boasts a long, unapologetic history across a disappointing number of contexts. The result will ultimately turn on how much (and how sincerely) we honor the sacrifice of veterans who died in WWII--and whether everyday Americans committed to the legacy of human rights they established see fit to raise our voices.

This article was originally posted on Huffington Post.

Torturing the Rule of Law

Sixty years ago, U.S. Supreme Court Justice Robert Jackson left Washington to pursue what he later called "the most important, enduring, and constructive work of [his] life": prosecuting international war crimes committed during WWII. Justice Jackson helped usher in a new international regime that promised to help deter human rights abuses.

Unfortunately, Jackson's achievements have proven less enduring than he hoped. Our nation continues to undermine international law by sweeping torture under the rug, with serious implications going forward.

The Nuremberg Trials established a timeless principle: individuals are criminally liable for violating fundamental human rights, even if their governments authorized those violations. Some laws, Nuremberg held, transcend those of any nation.

We have fallen a long way in so short a time. Rather than enforce international principles we once pioneered by prosecuting former officials who enabled torture, our nation today violates those principles with impunity.

President Obama's focus on the future aims to transcend the political divisions deepened by his predecessors. But setting aside the past comes at a price.

Most concretely, failing to prosecute taints the debate on other "war on terror" policies. Preventive detention schemes, infiltrations of law-abiding groups based on constitutionally protected speech or religious activities, and secret warrantless surveillance programs each entail severe threats to the Constitution. They demand public debate.

But these debates have been skewed by the inclusion of former officials who, because they remain free from investigation, also remain free to champion their discredited policies in public. Former Vice President Dick Cheney, for example, vigorously defends the Bush administration's detention policy, despite clear evidence that torture hurt America in more ways than one.

Torture harmed our international relations with even allies like Britain, which curtailed cooperation with the CIA because of inhumane detainee treatment. Moreover, as the U.S. Air Force Major whose interrogations found the leader of Al-Qaeda in Iraq has written, "Torture and abuse became Al Qaida's number one recruiting tool and cost us American lives." Criminal prosecution would place the arguments of Bush administration apologists in the context they deserve.

Other costs of avoiding prosecution are less concrete but equally severe. For instance, failing to prosecute, by definition, erodes the rule of law. Law entails the consistent application of neutral principles across differing contexts. Yet our nation tolerates vast inequalities in prosecution. Between 2006 and 2007, over 320,000 Americans received prison sentences for non-violent offenses. In sharp contrast, among the senior officials responsible for authorizing torture, none have faced even a criminal investigation -- let alone charges, prosecution or a sentence.

Hundreds of lawyers across the country recently wrote the Attorney General and Congress to explain how this unequal justice undermines the legitimacy of our legal system. They wrote, "The severity of systemic disadvantages in the criminal process grows more disturbing -- and the system's legitimacy grows less secure -- when violations of our nation's most fundamental commitments carry no consequences for potential criminals who wield political influence."

Lawyers are not the only ones challenged by this bias. Nearly 500 teachers also raised their voices, noting how lawlessness impacts students: "We teach principles about our nation's history, founding, and governance that appear simply implausible...[T]he preferential treatment of senior officials who commit heinous crimes-relative to the school-to-prison pipeline that ensnares many of their peers for relatively innocuous misbehavior-does not escape [our students'] attention."

Thousands of other concerned Americans from all 50 states, including hundreds of health professionals and interfaith religious leaders, have also observed that our country's future ability to promote human rights elsewhere turns on whether we do so here at home today. We at the Bill of Rights Defense Committee invite other concerned Americans to join their call.

The Bush administration's assault on the rule of law helped propel President Obama into office. Rather than fulfilling his politically daunting campaign promises, however, the administration has chosen expediency over equal enforcement of the law.

The President himself has suggested time and again that it is ultimately up to "We the People" to defend our interests. The struggle to restore rule of law is one we will win, but only with the passionate participation of every concerned American.

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Reposted from Huffington Post. An earlier version of this article appeared in The August Free Press as an op-ed on June 27.

Injecting sanity into the torture/prisoners debate - waterboarding, anyone?

Okay, that was sort of/completely a joke. I am not actually advocating we waterboard Congressional leaders, members of the media, or advocates regarding how ridiculous these discussions have become. At least I won't suggest such measures publicly. Sorry...some more torture humor. But there are a few important points that I think these discussions are just flat-out missing overall. Some folks are raising them, but in general, we don't hear enough about them.

1. Let's drop the moral issue for a second. Not to say that's not important/the most important issue at stake here, but I wonder if we even need to get that far. The question that might make all this debate pointless is...is torture useful? Seriously...can we try to really get a handle on this question? I realize we're not going to get a definitive answer, but I do think we can get a consensus view about how reliable torture actually is. Remember, the whole point is for intelligence, not to break somebody. This is why back-engineering SERE for interrogation seems to be useless...it doesn't really seem to serve any intelligence purposes.